Part 2, The dangerous disease of power
I have long held to the proposition that the expressed motivation attracting judges to the bench is suspect.
I do not take as universally true the easy, self-serving assurance of many judges that he or she simply wants to do good. I am leery of do-gooders. I have believed, and I still do, that judges, like all persons, have needs that fuel their choices. Their need, in a money society, is certainly not money, for judges are notoriously underpaid. The greatest attraction to the bench is simply power. In a given case the judge has more power over the litigants before him than any other human being on the face of the earth.
I have sometimes encountered tyrant judges who lord it over the poor rabble struggling below them, who seem to enjoy observing a particular lawyer helplessly twisting and turning in the winds of their whims. I have suspected that some such judges furtively rejoice in their power over lawyers who have been more successful than they, and over litigants who for unobvious reasons the judges may despise. I have seen judges who eagerly await the opportunity to dump a load of scorn on those who have made unfortunate choices in their lives. Yes, some want to do harm. And I am saddened that I find myself writing these lines.
I recognize that judges, like doctors who daily face the injured and dying, and lawyers who are routinely relating to clients who are maimed or hated or who are guilty of horrendous crimes, may become calloused in order to maintain some semblance of mental health. But as for judges, how does a human being wrench screaming children from their parents, turn one’s back on the pathetically injured for no better reason than they fail to fit some fictional legal model, send men to the death house or to long terms in the torture chambers of prison unless the judge has grown a certain protective coating around the hide of the heart? Still even the most gentle judge, the rare one who exudes a caring nature, is often one who I am not likely to trust, not at first. I have discovered that too often an outward benevolence covers a merciless heart.
But if I am fair I must acknowledge that judges are not too different than I. I, too, claim I want to do good. I claim that I have devoted my life to help the forgotten, the lost, the voiceless, and the damned. It all sounds good. The idea of it feeds my soul. I have a need to be useful, to feel worthy, to engage in just causes, to fight just fights. I wish to be seen as a warrior for the people. If my own sense of self stands for justice on behalf of ordinary people, justice against the powerful, against the corporate overlord and the tyranny of government why can’t I grant such an honorable motive to judges? After all, we have encountered many humans who genuinely care. And judges who were once lawyers surely know the dismal plight of those who seek justice and who so rarely obtain it. Yes, rarely.
Still, these days too many judges ascend to the bench bearing a fealty pledged to the people’s masters. We can understand the phenomenon. Today, most judges are selected by a power saturated with the interests of business, and a majority of the judges appointed were once prosecutors or corporate lawyers. In their former lives these lawyers took on the cause of power. As prosecutors they were daily drowned in the dreary decadence of criminals crowding the jails. As civil defense lawyers they experienced the excesses of trial lawyers representing those who claimed to be injured or who, even though injured, sought to take advantage of their injuries. The politicians seek judges who reflect their own philosophical leanings. The tree grows bent in the direction of the prevailing wind and in the calm can never fully right itself.
“The tree grows bent in the direction of the prevailing wind and in the calm can never fully right itself.”
Unfortunately, my view of the bench is supported by a majority of trial lawyers who represent ordinary people. At the Trial Lawyers College, where we teach lawyers how to successful fight for people against corporate and government power, the attitude of the attendees who have spent many years in the trenches before countless judges is nearly uniform. Rarely do I find a lawyer who believes most judges are mostly fair, mostly caring, and mostly driven to accomplish good ends. Sadly, many see judges as their enemies, as opponents in the courtroom even more powerful and adverse to the lawyer than the opposing lawyer.
They see judges more concerned with their dockets, with moving their cases forward, with controlling the courtroom and the lawyers, with making decisions that will be acceptable to their constituents and that will not be badly reported by the media. True, most often lawyers do not see judges as overtly dishonest or even consciously in the pocket of power. But they see them as the possessors of power who too often exercise it wrongly, insensitively, in forwarding their own agendas, and ultimately functioning to the detriment of the litigants. This is not to say that there are no caring, fair, even loving judges in this country. Many, but not enough, do great honor to the bench. In the end, a majority of judges are seen by most people’s lawyers as a power source of harm.
As for me it is harmful to look up to a judge who has ignored the poor and bowed to the rich, to show such a judge respect when he is not worthy of respect, to show such a judge deference when he reveals an underlying indifference to the human condition, to give such a judge honor when he has lived a life on the other side protecting power and money. Yet I am troubled by these judgments.